- (1.) THE admitted facts of the case: are that the petitioner was enrolled in Provincial Armed Contsbulary in the year 1966 which sometimes in the year 1968 merged in the Central Reserve Police Force. While he was in service the respondents found that while his actual date of birth as per school record was August 8, 1950, in the service record it is August 8, 1948. He was accordingly asked to explain by a show cause notice dated 10.2.94. A domestic enquiry was held after receiving his explanation. The Enquiry Officer confirmed the discrepancy but suggested that it be ignored. After considering the report of the Enquiry Officer, respondents vide notice dated 15.4.95 to show cause why major penalty should not be imposed upon the petitioner. The petitioner seeks quashing of the order of his removal from service on the following grounds. i) That power under Section 11 of the CRPF Act can be exercised only if the misconduct was committed as a member of the force. Since the allegation is that the petitioner forged his date of birth certificate to be eligible for recruitment, it is an act committed prior to his recruitment not punishable under the Act. ii) Assuming that the misconduct was committed by the petitioner as member of the force which however is not the case in view of the admitted facts u/s 11 of the CRPF Act, 1949 only minor punishment can be awarded but he has been awarded major penalty. iii) That even otherwise section 11 has no application on the admitted facts of the case.
(2.) THE respondents have justified the punishment awarded on the ground that petitioner has secured recruitment only after forging his date of birth certificate but for which he would not have been enrolled being underage by two years as he was only 16 years while the minimum age for recruitment in the PAC was 18 years. This act of cutting in the date of birth certificate according to the respondents was pointed out only by the pay and Accounts Office that too in the year 1992 where after disciplinary action came to be initiated.
(3.) MR . Ved. Bhushan Gupta appearing for the petitioner argued that by the impugned order, the petitioner has been removed from service which admittedly is a major penalty not countenanced by Section 11 read with rule 27 of the Rules. Besides, Section 11 of the Act under which order has been passed, argued the learned counsel, is attracted only if the misconduct was committed by a member of the Force. Since the petitioner even according to the respondents forged his date of birth only to become eligible for enrolment and he was enrolled by accepting his date of birth as 8.8.1948, this according to Mr. Gupta proves that the act was committed before he became a member of the force and is thus not a misconduct under Section 11 of the Act. The contention of Mr. Kapoor appearing for the respondents is that exercise of power under Section 11 is not restricted to the misconduct committed as a member of the force. In support of this, he places reliance on the law laid down by the apex court and the instructions issued by the Central Govt. in this behalf. His further contention is that removal from office of distinction occurring in Section 11 (1) (e) of the Act includes removal from service also. According to him removal form service is not the same as dismissal from service and as such it is not a major penalty. The question involved is whether the petitioner has forged his date of birth from 8.8.50 to 8.8.1947 and if so, was it before or after his enrolment in Privincial Armed Constabulary.;